Lovell v. Kansas City Southern Ry. Co.

• Citation: 121 Mo. App. 466,97 S.W. 193
• Parties: LOVELL v. KANSAS CITY SOUTHERN RY. CO.
• Decision Date: 01 October 1906
• Court: Court of Appeal of Missouri (US)

97 S.W. 193

121 Mo. App. 466

LOVELL v. KANSAS CITY SOUTHERN RY. CO.

Kansas City Court of Appeals. Missouri.

October 1, 1906.

Rehearing Denied November 5, 1906.

1. APPEAL—TIME TO APPEAL—STATUTES.

A defeated party filed a motion for a new trial in proper time. It was not heard until the following term when it was overruled and an appeal was allowed him by the court at that term. Held, that the appeal was allowed in time within Rev. St. 1899, §§ 806-808, relating to the allowance of appeals by the circuit court if made during the term at which the decision appealed from was rendered, etc.

2. SAME—NOTICE OF APPEAL—STATUTES—APPLICABILITY.

Rev. St. 1899, § 811, providing that unless the appeal is taken in the court in which the judgment was rendered, notice in writing of the appeal must be given to the adverse party, refers only to appeals granted by the appellate courts by special order under section 810, authorizing judges of the appellate courts to grant appeals in specified cases, and not to appeals taken in the court where the judgment was rendered.

3. RAILROADS—INJURY TO LICENSEE—DUTY TO WARN.

A consignee engaged in unloading a car placed on an unloading track is on the railway premises by the invitation of the company, and he is not compelled to be on the lookout for unusual dangers but the employés of the company engaged in switching cars on the unloading track must give warning of the approach of cars.

4. SAME.

One being in a car on an unloading track at the invitation of the consignee and engaged in unloading is entitled to receive warning of the approach of cars placed on the track by employés of the railway company engaged in switching, provided they should have considered the likelihood of his presence in the car.

5. NEGLIGENCE—ACTION FOR PERSONAL INJURY—BURDEN OF PROOF.

One suing for a personal injury inflicted by the negligence of another has the burden of showing from reasonable inferences from the facts produced that the latter failed to take a precaution that would have been suggested to an ordinarily careful person in a similar situation.

6. RAILROADS—INJURY TO LICENSEE—DUTY TO WARN—NEGLIGENCE—EVIDENCE.

A car loaded with corn was placed on an unloading track. A third person purchasing from the consignee a quantity of corn sacked the corn in the car before loading it into his wagon. While at work at a time when it was customary for men employed in unloading cars to be at lunch, he was injured in consequence of a car switched onto the track striking the car he was unloading. There was no sign of activity about the car. There was no evidence that corn was ordinarily sacked in the car before unloading. Held insufficient to prove negligence on the part of the company in failing to give warning of the approach of the car.

Appeal from Circuit Court, Bates County; W. W. Graves, Judge.

Action by John Lovell against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

S. W. Moore, Cyrus Carne, and H. C. Clark, for appellant. Silvers & Silvers and Allen & Allen, for respondent.

JOHNSON, J.

Plaintiff was injured while engaged in sacking corn in a car standing on a side track of defendant's railroad and alleges that his injuries were caused by the negligence of defendant. He recovered judgment in the sum of $3,500, and defendant appealed.

Plaintiff filed a motion to dismiss the appeal on the ground that it was allowed at a later term of the circuit court than that at which the judgment was rendered and no notice of appeal was given by the appellant as required by the provisions of section 811, Rev. St. 1899. It appears the cause was tried at the October term, 1903, of the circuit court, and the verdict and judgment were for plaintiff. Defendant filed a motion for a new trial in proper time, but this motion was not heard until the following term when it was overruled, and an appeal was allowed defendant by the circuit court at that term. The appeal, therefore, was taken under the provisions of sections 806, 807, and 808 of the Revised Statutes of 1899, which relate to the allowance of appeals by the circuit court. Obviously section 811 refers only to appeals granted by the appellate courts by special order under the provisions of section 810, and not to appeals taken in the court where the judgment was rendered. The motion is overruled.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. A grain car loaded with corn had been hauled by defendant as a common carrier for hire from Kansas City to its station at Amoret for delivery to M. Reed, the owner of an elevator at the latter place. The car arrived at Amoret on November 17, 1901, and at the request of the consignee was switched to an unloading track maintained by defendant. The railroad runs north and south through Amoret, and consists of three tracks—first, the main line on the east; next, the passing track; and on the west the unloading track. Reed's elevator stands immediately west of the unloading track, and so close thereto that cars of grain were frequently set opposite the door of the elevator and grain shoveled from them into the elevator. When this method of unloading was followed, a piece of canvas was stretched from the floor of the car to the doorway of the elevator to catch and hold grain that would fall short in shoveling. In other instances cars of corn consigned to Reed were, at his request, placed for unloading on the unloading track a short distance to one side of the elevator, in order that the grain could be unloaded into the wagons of customers. There is a conflict between the witnesses relative to the place where the car in the present case was set by defendant. Defendant's agent tesified that by direction of the consignee he had the car placed at...